Hillary Clinton should be charged with espionage. Not really. And I don't think she will be. But if the Obama administration is going to be consistent in its treatment of those who leak classified information, Clinton ought to face charges under the Espionage Act.

The Espionage Act was written in 1917 to combat German saboteurs during the First World War. Between 1917 and 2008, it was used three times to charge Americans who had passed classified information to the press. Since Barack Obama became president, however, his Justice Department has charged eight Americans with espionage. I know. I'm one of them. And none of us gave classified information to a foreign government. In fact, most of us were whistleblowers, exposing evidence of government waste, fraud, abuse, or illegality.

The Espionage Act is actually pretty simple. It says that a person is guilty of espionage if he provides "national defense information to any person not entitled to receive it." The problem is that it does not define what "national defense information" is. It doesn't mention "classified information" because it was written so long ago that the classification system hadn't even been invented yet.

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It also doesn't address the problem of overclassification. Who classifies federal documents? Everybody. I did during my 15 years at the CIA. If I wanted to meet a colleague for lunch in the CIA cafeteria, for example, I would send him an email and classify it "Secret." Why? That was standard operating procedure. We all did it. Everything was classified. Even when it wasn't.

The Espionage Act also doesn't address the issue of disclosing classified information for the public good. There's no affirmative defense in an Espionage Act case. For example, Edward Snowden told us that the NSA was spying on Americans, which is against the law and prohibited by the NSA's charter. Instead of thanking him, the Justice Department charged him with espionage. I blew the whistle on the CIA's torture program. Torture is against U.S. law and myriad international treaties and conventions to which the U.S. is a signatory. I ended up with three espionage counts. (They were all eventually dropped.)

But if the Obama administration is going to be consistent in its use of the Espionage Act, it will have to charge Hillary Clinton with espionage because of her alleged passage of classified information using an unclassified server. The FBI is currently investigating, and I would bet that it recommends a criminal case against Clinton to the attorney general. A prosecution will never happen, though.

The Obama administration has been highly hypocritical in its use of the Espionage Act. If you're a friend of the president, like General James Cartwright or former CIA director Leon Panetta, you get a pass. General Cartwright, who has been identified in the press as the president's favorite general," allegedly told the New York Times that the U.S. was behind the Stuxnet virus that infected computers being used in the Iranian nuclear program. Director Panetta revealed the name of the Navy Seal who killed Osama bin Laden to an audience that included an uncleared Hollywood producer. And General David Petraeus, who leaked highly-classified information, including the names of undercover CIA operatives, to his girlfriend, got a sweetheart deal that ended up as a misdemeanor, with no espionage charge.

In all of these cases, the FBI reportedly recommended charges of espionage. But the decision to prosecute is political. It's made by the attorney general and the president. The Espionage Act is a political weapon. If you're a friend of the president, you don't have to worry. If you expose wrongdoing, your life will be changed forever. Hillary Clinton doesn't have anything to worry about.

John Kiriakou spent 14 years at the CIA and two years in a federal prison for blowing the whistle on the agency's use of torture. He served on John Kerry's Senate Foreign Relations Committee for two years as senior investigator into the Middle East. He writes and speaks about national security, (more...)